Real Estate & Property Law

New York's problems in obtaining change

By Alan Ackerman

New York Daily News

In recent years, New York has earned the dubious distinction of being one of thenation's worst abusers of eminent domain. The Empire State Development Corp. (ESDC) and localities have approved condemnation of property for a huge range of wealthy private entities, including the New York Stock Exchange, Costco, Stop & Shop and Columbia University. The latest outrage is the effort by the Empire State Development Corp. to take homes and other private property for Bruce Ratner's Atlantic Yards stadium development.

There are owners who don't want to sell and residents who don't want to move, but the ESDC has used the power of eminent domain to force everyone to leave. The government is supposed to pay owners "just compensation" for the property, but the owner has no choice: not about whether to keep property and not about how much to sell it for.

Not only is this un-American, it is unconstitutional.

There may, however, finally be light at the end of a very dark tunnel. In October, the New York Court of Appeals, the state's highest court, will hear the legal challenge of Brooklyn residents and businesses looking to block the use of eminent domain to build Atlantic Yards.

It has been more than a generation since the state's highest court has interpreted the New York Constitution's provision that property may be taken only for "public use." It's time for the court to take a long, hard look - before more damage is done.

The fundamental legal question is whether the state should go along with the notorious 2005 decision by the U.S. Supreme Court in Kelo vs. City of New London. In that ruling, the court said that using eminent domain for potential job creation, increased taxes or general economic development does not violate the U.S. Constitution. In the firestorm of outrage that followed, 43 states changed their laws to make eminent domain for private development either more difficult or impossible.

New York remains one of only seven that have not.

The article is well thought out and worthwhile reading.  The problem remains that many courts look to the electorate to change (or favorably interpret) the Public Use definition.  Because of the difficulty of the referenda process and the close allegiance between legislators, local officials, and local developers, New York has a real problem in obtaining change despite the overwhelming public support for a limitation on condemnations of viable private properties.

Full post as published by National Eminent Domain Blog on August 26, 2009 (boomark / email).